How Preexisting Injuries Affect Injury Claims
In many injury accident cases, the injured party may face opposition from a defendant’s insurance company based on the fact that the plaintiff has a preexisting injury. Although a plaintiff may not collect damages for any condition that existed before the conduct causing the injury took place, the plaintiff is entitled to damages for physical or mental conditions that were made worse. For these claimants, how they handle their preexisting injuries could either negatively or favorably affect their injury claims.
Disclose Any Prior Injuries
At the outset, car accident attorneys must convey to their clients the importance of disclosing any previous injuries, no matter how dissimilar they may be to the current injuries. Failing to disclose preexisting injuries, especially those that affect the same part of the client’s body, can severely impugn the plaintiff's credibility and the value of the overall claim.
Also, by minimizing the effects of a serious prior injury, an adjuster or jury may suspect the legitimacy of the plaintiff’s current injuries. Consequently, they may not sufficiently consider the fact that the plaintiff may have had no history of treatment or complaints for a number of years, pointing to the current accident as the source of the injuries.
The Egg-Shell Plaintiff
A preexisting injury may cause the plaintiff to be in a weakened condition, causing him or her to be more susceptible to injury, thus causing aggravation of the condition. A defendant must take plaintiffs as they find them — in the condition they are in at the time of the accident. This “soft-shell” plaintiff argument is particularly effective in a low-impact auto accident collision where a jury may doubt that the accident could have caused the claimed injury.
The law on awarding damages for aggravating prior injuries can be found in a state’s jury instructions. California’s jury instruction is similar to those in most states.
Comparing Medical Records
Another advantage to having a preexisting injury is the ability for an injury attorney to compare past medical records and diagnostic tests with current ones to objectively verify how the accident worsened the plaintiff’s preexisting condition.
Based on X-rays or MRIs taken years apart, a medical expert can testify as to how the accident affected and even worsened the plaintiff’s condition. The witness can also use clinical records to compare the plaintiff’s degree of pain, extent of necessary care, or disability before and after the accident. If the plaintiff has suffered a permanent disability, a portion of which is attributable to the prior injury, an expert medical witness can apportion the extent of the disability worsened by the accident. Such testimony affects the amount of medical costs attributable to the defendant’s conduct that may be awarded to the plaintiff.
By promptly and fully disclosing preexisting injuries in personal injury claims, and by arguing that those injuries weakened the plaintiffs' condition rendered them more susceptible to new injuries, personal injury attorneys compare medical records and use prior injuries to the client's distinct advantage. This results in recovery of the appropriate amount of damages to which the client is entitled.